Trump v. Int'l Refugee Assistance Project, 137 S. Ct. 2080, 198 L. Ed. 2d 643 (June 26, 2017) (No. 16-1436)(granting cert and granting stay in part)

The AAUP joined with the American Council on Education and other higher education groups in an amicus brief to the US Supreme Court opposing the Trump administration’s Executive Order (“EO”) instituting a travel ban. We argue that people from the six countries identified in the ban should not be barred or deterred from entering the United States and contributing to our colleges and universities. The brief emphasized the significant value of foreign academics and the international exchange of scholarly work, and explained that “the EO jeopardizes the vital contributions made by foreign . . . . scholars, and faculty by telling the world in the starkest terms that American colleges and universities are no longer receptive to them.” 

The Supreme Court case arose out of appeals from two lower court decisions addressing the travel ban, Hawaii v. Trump, 859 F.3d 741 (9th Cir. June 12, 2017) and Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. May 25, 2017). In Hawaii v. Trump, plaintiffs brought suit challenging the legality of the travel ban. The federal district court preliminarily enjoined the federal government from enforcing certain sections of the travel ban. The government appealed, and the Court of the Appeals for the Ninth Circuit largely upheld the district court's ruling. The Ninth Circuit found that the President exceeded his authority in issuing an order excluding nationals of specified countries from entry into the United States since there were no adequate findings that entry of excluded nationals would be detrimental to the interests of the United States, that present vetting standards were inadequate, or that absent improved vetting procedures there likely would be harm to the national interests. It also held that the travel ban improperly suspended entry of the nationals on the basis of their country of origin, since the travel ban in substance operated as a prohibited discriminatory ban on visa issuance on the basis of nationality. Finally, it ruled that restricting entry of refugees and decreasing the annual number of refugees who could be admitted was improper since there was no showing that the entry of refugees was harmful and procedures for setting the annual admission of refugees were disregarded.

In Int’l Refugee Assistance Project v. Trump, after the district court concluded that Plaintiffs had standing to sue, it found that Plaintiffs were likely to succeed on the merits of their Establishment Clause claim and issued a preliminary injunction against enforcement of the travel ban. The Court of Appeals for the Fourth Circuit affirmed in part, holding that the political branches' plenary power over immigration is subject to constitutional limitations and that, "Where plaintiffs have seriously called into question whether the stated reason for the challenged action was provided in good faith," courts are required to look beyond that stated, facially legitimate rationale for evidence the rationale is not genuine. In this case, the court examined the travel ban in the context of statements made by the president during the 2016 campaign season and found that it "drip[ped] with religious intolerance, animus, and discrimination." The court held that the preliminary injunction was proper because it could likely be shown that the Muslim travel ban violated the Establishment Clause because its primary purpose was religious, based on evidence that it was motivated by the President's desire to exclude Muslims from the United States. The court also rejected the government’s reliance on allegations of harm to national security interests finding they did not outweigh the competing harm of the likely constitutional violation and because it was plausibly alleged that the stated national security purpose was provided in bad faith.

The Supreme Court of the United States consolidated these cases and on June 26, 2017, the Supreme Court granted the government’s petition for writ of certiorari and issued a brief opinion allowing the government to enforce the Muslim travel ban, with an exception for travelers and refugees who have a “credible claim” of a genuine relationship with an individual or institution in the United States. When that relationship is with an institution, the relationship must be a genuine one, rather than one created just to get around the Muslim travel ban.

On September 18, 2017, the AAUP joined with the American Council on Education and other higher education associations, in an amicus brief filed in the Supreme Court that opposes the travel ban. The brief specifically noted the harm to faculty: “From the moment [EO] was signed, . . . [f]aculty recruits were . . . deterred from accepting teaching and research positions. And scholars based abroad pulled out of academic conferences in the United States, either because they were directly affected by the EO or because they are concerned about the EO’s harmful impact on academic discourse and research worldwide.”  It is difficult to overstate the importance of conferences, colloquia, and symposia to scholarly communication. They enable intellectual give-and take and real-time digestion and discussion of research. Conferences also allow for in-person encounters and discussions that give rise to important future collaborations.”

The brief concluded “American colleges and universities ‘have a mission of ‘global engagement’ and rely on . . . visiting students, scholars, and faculty to advance their educational goals.’ Washington v. Trump, 847 F.3d 1151, 1160 (9Th Cir. 2017). That vital mission cannot be achieved if American immigration policy no longer sends a welcoming message to the members of the international community who wish to enter our campus gates. As explained above, the EO jeopardizes the many contributions that foreign students, scholars, and researchers make to American colleges and universities, as well as our nation’s economy and general well-being.”